Abstract

http://ssrn.com/abstract=2443473
 


 



Revisiting the Revisionist History of Standard Oil


Christopher R. Leslie


University of California, Irvine School of Law

May 29, 2014

Southern California Law Review, Vol. 85, No. 3, 2012
UC Irvine School of Law Research Paper No. 2014-33

Abstract:     
The Standard Oil case continues to inform many aspects of current antitrust policy. Part of Standard Oil’s significance, however, has been lost over time. The Supreme Court condemned a range of conduct by the Standard Oil Company as anticompetitive, including predatory pricing. Predatory pricing occurs when a firm prices its product below cost in order to drive its competitors from the market. Once enough rivals have exited the market, the predator raises price and earns stream of monopoly profits.

In the decades following the opinion, the conventional wisdom held that Standard Oil had engaged in predatory pricing. The Standard Oil opinion stood for the proposition that using predatory pricing to acquire or maintain a monopoly violates Section 2 of the Sherman Act. The opinion did not define the contours of predatory pricing, neither explicitly saying that a predatory price is a price below cost nor specifying what measure of cost courts should use. Nevertheless, the opinion laid the groundwork for future federal courts to address these questions and to provide more structure to the predatory pricing cause of action.

Based on a revisionist history of Standard Oil written by John McGee in 1958 article, the new conventional wisdom now holds that the Standard Oil Company never engaged in predatory pricing and that the case stands for the proposition that monopolists do not use below-cost pricing as a mechanism to acquire or maintain monopoly power. The article challenges McGee’s thesis. After exploring how McGee’s work has affected antitrust jurisprudence, this article challenges McGee’s interpretation of the trial record in Standard Oil, showing several instances where the data shows the Standard Oil Company charging a price below its costs. McGee often ignored or misinterpreted evidence inconsistent with his thesis that the Standard Oil Company never engaged in predatory pricing. Finally, despite claims that McGee’s work is empirical proof of the irrationality and nonexistence of predatory pricing, this article shows that McGee’s work is theoretical, not empirical, and has had undue influence.

Number of Pages in PDF File: 33

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Date posted: May 31, 2014  

Suggested Citation

Leslie, Christopher R., Revisiting the Revisionist History of Standard Oil (May 29, 2014). Southern California Law Review, Vol. 85, No. 3, 2012; UC Irvine School of Law Research Paper No. 2014-33. Available at SSRN: http://ssrn.com/abstract=2443473

Contact Information

Christopher R. Leslie (Contact Author)
University of California, Irvine School of Law ( email )
401 E. Peltason Drive, Suite 1000
Irvine, CA 92697-1000
United States
949-824-5556 (Phone)
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